In Re: Choice Homes, Inc., Micky May and James B. White--Appeal from 10th District Court of Galveston County

Petition for Writ of Mandamus Dismissed in Part and Conditionally Granted in Part, and Majority and Concurring Opinions filed September 30, 2005

Petition for Writ of Mandamus Dismissed in Part and Conditionally Granted in Part, and Majority and Concurring Opinions filed September 30, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-01008-CV

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IN RE: CHOICE HOMES, INC., MICKY MAY, AND JAMES B. WHITE

ORIGINAL PROCEEDING

PETITION FOR WRIT OF MANDAMUS

C O N C U R R I N G O P I N I O N

I concur with the majority, but write separately to express concern about the use of an Employee Injury Benefit Plan to eliminate a former employee=s right to a jury trial when pursuing legal remedies against a former fellow employee for conduct wholly unrelated to or outside the course and scope of employment. Succinctly, I would discourage future litigants from contending that the majority opinion provides authority for courts to compel arbitration under those circumstances. With this reservation, I agree with the majority that

we must focus on the plaintiffs= factual allegations in order to determine whether the claims fall within the scope of the arbitration agreement. Prudential Sec. Inc. v. Marshall, 909 S.W.2d 896, 900 (Tex. 1995). I concur with the majority because the appellate record supports the assertion that the described claims relate to circumstances surrounding plaintiffs= employment relationships that occurred before or after plaintiffs were terminated. Moreover, arbitration of disputes is strongly favored under federal and state law. Id. at 898.

/s/ Charles W. Seymore

Justice

Petition for Writ of Mandamus Dismissed in Part and Conditionally Granted in Part, and Majority and Concurring Opinions filed September 30, 2005.

Panel consists of Justices Frost, Seymore, and Guzman. (Frost, J., majority.)